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Lord Haskel: The noble Baroness referred to the matter of secrecy. Perhaps I may respond by saying that one person's secrecy is another person's commercial confidentiality.

With regard to the amendment, it may be helpful if I explain briefly the three principles behind the Government's proposals as far as agriculture is concerned. The noble Baroness referred to the operation of the agricultural wages boards. The three principles are, first, that the minimum wage should apply in the agricultural sector as elsewhere; secondly, that we should not, through the Bill, seek to make wholesale changes to the existing agricultural wages regimes in England and Wales, Scotland and Northern Ireland, and that the agricultural wages boards will continue with their work; and, thirdly, that the same rules will apply across the board, both in agriculture and elsewhere.

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The amendment would require the Low Pay Commission and the agricultural wages boards to report to the Secretary of State and the Minister of Agriculture on the operation of the clauses in the Bill which govern this kind of interface between the national minimum wage regime and the agricultural wages regimes. The main effect of the amendment would be to require the Secretary of State to set up a statutory Low Pay Commission to report on these agricultural matters, whether or not in conjunction with the agricultural wages boards, and to that extent remove the discretion of the Secretary of State with regard to what matters to refer to the Low Pay Commission, and indeed to pre-empt and supplant the planned 1999 review of the agricultural wages regimes.

I should point out that the review of the agricultural wages boards was planned for 1998 but has been postponed until 1999 to give a year to see how the two regimes--the minimum wage regime and the agricultural wages boards regimes--bed down together.

Perhaps I may assure Members of the Committee that the matters referred to in the proposed new clause will be looked at, one way or the other, as part of the review of the agricultural wages regimes. However, I believe that it is too early to speculate on what role a statutory commission might have in the process. Certainly, it is unnecessary to prescribe details of coverage, timing and procedure, as the amendment seeks to do. Therefore, while appreciating the thinking behind the amendment, I do not believe that it is necessary. I hope that the noble Baroness will accept that and withdraw her amendment.

Baroness Miller of Hendon: I said that I could be very brief; I was very brief, as was the Minister. I shall read what he said. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 48 [Application of Act to superior employers]:

Baroness Miller of Hendon moved Amendment No. 123:

Page 30, line 9, at end insert ("provided that in the circumstances it seems just and fair for him to be so deemed.").

The noble Baroness said: Amendment No. 123 may seem at first sight to be a minor drafting amendment. In fact, it is not. The Government's approach to this clause is somewhat curious. I shall explain what I mean shortly. First, I should point out that deeming is a legal draftsman's device--trick is too strong a word--to make something exist when that is not actually the case. The Oxford English Dictionary defines the word as meaning to "think of as existing". Lawyers drafting contracts, or Parliament, in its wisdom, can deem almost anything. If Parliament says, "For the purposes of this Act, Monday shall be deemed to occur after Friday", then that will be the case.

In this clause, the employee of an employee is also "deemed" to be the employee of the head employer. Why should a sub-employee be deemed to be the employee of a person who did not engage him; who may not even know him? Surely common sense tells us that the employer is the person who pays the worker's

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wages. However, I decided not to wrestle with that riddle because a much more important and serious issue arises from the clause.

I said that the Government's approach seemed to be somewhat curious. That is something of an understatement. In the DTI Notes on Clauses, it states,

    "This clause closely follows the approach of Section 22 of the former Wages Act 1986".
In fact, it does not; far from it. The clause follows word for word Section 22(1) of the 1986 Act. However, subsections (2) and (3) provided a defence for the head employer so that,

    "Where the commission ... of an offence ... is due to the act or default of some other person, that other person shall be guilty of the offence".
In subsection (3) it states,

    "In any proceedings for an offence ... it shall be a defence for the person charged to prove that he exercised all due diligence and took all reasonable precautions to secure that the provisions ... were complied with".

Why were those reasonable exceptions to this identical provision omitted from the present Bill? Why did the notes claim that the clause follows "closely"--I stress the word "closely"--the precedent of the Act introduced by the previous government when it clearly and manifestly does not?

That is not all. Section 22 of the Wages Act 1986 was itself derived from Section 21 of the Wages Councils Act 1979. That contained the same provision as that proposed in Clause 48 of the present Bill, but with the same defences as are contained in the 1986 Act--defences not in the same words as in the 1986 Act, but entirely to the same effect. Those are the defences which the Government, for some reason, have seen fit to exclude from this Bill.

The Wages Councils Act 1979 was derived from the Wages Councils Act 1959 and that too, in Section 18, contained the same provisions as appear in Clause 48 of this Bill, but with the same defences as were later incorporated into the 1979 and 1986 Acts. Nineteen-fifty-nine was 39 years ago, but I am not finished yet. I can go back even further. The identical provision with an identically worded defence to that in the 1959 and 1979 Acts was contained in Section 19 of the Wages Councils Act 1945. We have a history of the proposed Section 48 going back no fewer than 53 years, but always with the two defences which the Government are surreptitiously trying to drop.

Clause 48 is a tried and tested clause, complete with two entirely proper defences going back through no fewer than five Acts of Parliament and two of those Acts were introduced under old Labour governments. When the present new Labour Government again introduce this tried and tested provision in the present Bill, they quietly deleted those long-standing defences which are intended to protect a wholly innocent person who is able to prove that any offence was not his fault but the fault of a third party.

Why have the Government sought to create an absolute offence when, for over half a century, there has been a defence in certain circumstances? We want to know who gave the instructions for the removal of those

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two defences. Which Minister was it? No less important a question is this: why, in the notes to the Bill, did the DTI incorrectly claim that the present clause "closely"--again I emphasise that word--follows Section 22 of the Wages Act 1986? Which Minister, after deleting the two defences, gave instructions for the word "closely" to be inserted in the notes, which clearly and obviously originally read,

    "this clause follows the approach of section 22 of the former Wages Act 1986"? It does not remotely do so because of the omission of those two important subsections containing defences which were included in all the five Acts which directly preceded the present Bill. I should like to know the reason not only for the proposed exclusion of defences but also for the deceptive way in which the Government dealt in the notes with that major change--notes which stand the facts completely on their head--by saying that Clause 48 closely follows Section 21 of the 1986 Act when it does not.

I realise that the Minister cannot be expected to answer those questions immediately. However, they are not rhetorical questions. I trust therefore that the Minister will agree to give me a detailed written reply to both those questions before the next stage of the Bill. The noble and learned Lord, Lord Falconer, and the noble Lords, Lord Clinton-Davis and Lord Haskel, are all persons of the highest integrity and we can rely on them to give a full answer to these serious questions.

My amendment adds a simple, uncomplicated, easily understood and reasonable defence. However, the Minister need not spend too much time in commenting on the amendment because I do not intend to press it tonight. The reason for that is that I expect the Government to introduce at a later stage an amendment incorporating into the present clause the tried and tested wording of the 1986 Act and its four predecessors.

I realise that the Minister cannot give me such an undertaking today. As the noble Lord, Lord Clinton-Davis, pointed out at the beginning of the debate last Monday, at col. 1380, he is not in charge of the Bill; it is the Minister of State in the other place who is in charge. Perhaps it is to him the Minister should first direct our questions as to who altered the original section and ordered the incorrect insertion of the word "closely". I beg to move.

Lord Skelmersdale: Before the noble and learned Lord responds to the interesting and incredibly well-researched speech of my noble friend, perhaps he can respond to my question, which is much more fundamental.

I ask the noble and learned Lord to put his mind to the concept of small businesses. A small business will have an employer, could well have a foreman or supervisor and of course will have an employee. In relation to this Bill, and ultimately the Act, surely it is the employer who is responsible for paying not less than the minimum wage; the foreman or the supervisor has nothing to do with that. Therefore, if the supervisor or the foreman is "deemed" under this clause--and

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assuredly they would be--surely the Bill is striking at the wrong target. It is the employer who decides on the wages, not the foreman or the supervisor.

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